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Gujarat High Court · body

2011 DIGILAW 708 (GUJ)

Special Land Officer v. Kanubhai Shankarbhai

2011-10-12

JAYANT PATEL, R.M.CHHAYA

body2011
JUDGMENT : Jayant Patel, J. As in both groups of appeals common judgment and award is under challenge and common questions arise for consideration, they are being considered by this common judgment. 2. The relevant facts are that the lands at village Vadachha, Taluka Amod, District Bharuch were to be acquired for the Amod Sub Canal of Narmada Project under the Land Acquisition Act (herein after referred to as 'the Act'). Notification under section 4 of the Act was published on 30.6.1993. Notification under section 6 of the Act was published on 2.9.1994. The award under section 11 of the Act was passed by the Special Land Acquisition Officer on 29.10.1994 and he awarded compensation at Rs.2.25 per sq.mtr. (Rs.225/- per Are) for irrigated land and Rs.1.50 per sq. mtr. (Rs.150/- per Are) for non irrigated land. As the claimants were not satisfied with the compensation they raised the dispute under section 18 of the Act and demanded compensation at Rs.2.80 per sq.mtr. Such disputes were referred to the Reference Court for adjudication being Land Reference Case No. 695 of 1996 to 708 of 1996. The Reference Court at the initial stage vide judgment and award dated 15.2.2005 had found that the disputes under section 18 were raised after the expiry of the period of limitation of six months and therefore the References were barred. However, the pertinent aspect is that in the said judgment and award the Reference Court had also simultaneously decided the quantum of market value of the land at Rs. 400/- per Are (Rs.4.00 per sq.mtr.) for non irrigated land and Rs. 600/- (Rs. 6 per sq. mtr.) for irrigated land. But as the disputes were found to be time barred all the References were dismissed. It further appears that the original claimants preferred Review Application being Civil Misc. Application Nos. 89 of 2005 to 102 of 2005 before the Reference Court on the ground that the binding decision of the Apex Court on the aspects of limitation could not be brought to the notice of the Reference Court and therefore, the review was prayed. The Reference Court below the said application for review vide order dated 9.5.2005 ultimately allowed the Review Application. Thereafter, since the Review Applications were allowed the References were considered and the awards were passed on 15.2.2005 whereby the Reference Court awarded compensation at Rs.400/- per Are (Rs.4/- per sq. The Reference Court below the said application for review vide order dated 9.5.2005 ultimately allowed the Review Application. Thereafter, since the Review Applications were allowed the References were considered and the awards were passed on 15.2.2005 whereby the Reference Court awarded compensation at Rs.400/- per Are (Rs.4/- per sq. mtr.) for non irrigated land and Rs.600/- per Are (Rs.6/- per sq. mtr.) for irrigated land. Additionally the Reference Court awarded solatium under section 23(3) of the Act and further awarded interest as per section 28A of the Act. Under the circumstances, the present appeals before this Court. 3. We may record that First Appeal Nos. 5072 of 2007 to 5082 of 2007 have been preferred by the Special Land Acquisition Officer and another against the order in review passed by the Reference Court and thereafter the consequential award for granting of compensation by the Reference Court. Whereas the First Appeal Nos. 4833 of 2008 to 4846 of 2008 have been preferred by the original claimants for enhancement of the compensation. 4. We have heard Ms. Thakkar for the Special Land Acquisition Officer in all the matters and Mr. Majmudar. Learned Counsel appearing on behalf of the original claimants in all the matters. We have considered the Record and Proceedings. We have considered the judgment and the reasons recorded by the Reference Court. 5. The first aspect deserves consideration is exercise of the powers by the Reference Court in review for treating the reference as not barred by limitation. It is true that the Reference Court at the initial stage did find that the disputes were not raised within the period of six months from the date of the award and therefore they were barred by limitation but the order thereafter passed in review shows that the Reference Court found that the binding decision of the Apex Court for considering the date for commencement for the period of limitation could not be considered by the Court and therefore the Reference Court found it proper to review the decision. We may record that the Reference Court in the decision has relied upon the earlier decision of the Apex Court but even if the matter is to be considered independently as on today the same principles are reiterated by the Apex Court subsequently in the recent decision of the Apex Court on the said aspect is in the case of Bhagwan Das And Others v. State of Uttar Pradesh And Others, reported in (2010) 3 SCC 545 , wherein the Apex Court after considering the relevant case law as well as statutory provisions has summraised at para 28 as under : “28. The following position therefore emerges from the interpretation of the proviso to Section 18 of the Act : (i) If the award is made in the presence of the person interested (or his authorised representative), he has to make the application within six weeks from the date of the Collector's award itself. (ii) If the award is not made in the presence of the person interested (or his authorised representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector under Section 12(2). (iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award. (iv) If the person interested receives a notice under Section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under Section 12(2) of the Act was the date of knowledge of the contents of the award.” 6. If the facts of the present case are considered in light of the aforesaid principles laid down by the Apex Court, it appears that the Reference Court has recorded finding of fact that the applicants-original claimants came in knowledge of the essential contents of the award only on 4.3.1995 and if the period is counted from that date then the reference case could be said to be within the period of limitation (six months' period) as the disputes were submitted on 17.5.1995. 7. The learned Assistant Government Pleader has not been able to show any pleading or any evidence led to show otherwise so as to consider the case in the other category viz. as that of service of the award or intimation in respect of the award to the claimants. She submitted that concerned Talaties were instructed by the Special Land Acquisition Officer to intimate the land owner about the award but no material on record is produced to satisfy the Reference Court, that such direction was in fact complied with by Talati and the claimants were intimated accordingly. The aforesaid principles would apply so as to consider the aspect of limitation. At this stage, we may once again refer the decision rendered in case of Bhagwan Das (supra) at paragraphs 30 and 31 in order to point out as to whether the burden would be upon the claimant or upon the Collector. The said observation reads as under : “30. When a person interested makes an application for reference seeking the benefit of six months' period from the date of knowledge, the initial onus is on him to prove that he (or his representative) was not present when the award was made, that he did not receive any notice under Section 12(2)of the Act, and that he did not have the knowledge of the contents of the award during a period of six months prior to the filing the application for reference. This onus is discharged by asserting these facts on oath. He is not expected to prove the negative. This onus is discharged by asserting these facts on oath. He is not expected to prove the negative. Once the initial onus is discharged by the claimant/person interested, it is for the Land Acquisition Collector to establish that the person interested was present either in person or through his representative when the award was made, or that he had received a notice under Section 12(2) of the Act, or that he had knowledge of the contents of the award. 31. Actual or constructive knowledge of the contents of the award can be established by the Collector by proving that the person interested had received or drawn the compensation amount for the acquired land, or had attested the mahazar/panchnama/proceedings delivering possession of the acquired land in pursuance of the acquisition, or had filed a case challenging the award or had acknowledged the making of the award in any document or in statement on oath or evidence. The person, interested, not being in possession of the acquired land and the name of the State or its transferee being entered in the revenue municipal records coupled with delay, can also lead to an inference of constructive knowledge. In the absence of any such evidence by the Collector, the claim of the person interested that he did not have knowledge earlier will be accepted, unless there are compelling circumstances not to do so.” 8. Aforesaid shows that once it came on record that the claimants have alleged or shown that they were not present at the time of the award nor they have received any notice, the burden would be upon the Collector by proving that the person interested had received or drawn the compensation amount from the acquired land or attested the panchnama at the time of delivery of the possession or otherwise. No evidence in this regard is brought to our notice. Under the circumstances, we find that the view taken by the Reference Court in review for treating the reference as not barred by limitation cannot be said to be erroneous. 9. The aforesaid takes us to examine the aspect of quantum of the compensation for the market value of the land at the time when the Notification under section 4 of the Act was published. 9. The aforesaid takes us to examine the aspect of quantum of the compensation for the market value of the land at the time when the Notification under section 4 of the Act was published. The learned Assistant Government Pleader during the course of hearing has shown to us the map of Amod taluka and the same is considered by us with the consent of the learned Counsel for the original claimants for the purpose of finding out the location of the village and the adjacent villages. The map shows that village Sarbhan is just adjacent to village whose boundaries are touching to village Vedchha wherein the present lands are located. There is also reference of village Sarbhan in the valuation report (Exh.66) which was produced by the claimants and parity was attempted to be given with village Sarbhan. In the valuation report it has also been mentioned that the boundary of village Sarbhan is touching to village Vedchha. It is true that as per the Valuer's report the valuation of the land in question was assessed at a higher rate but we cannot lose site of the important aspect that village Sarbhan is a different village than the village Vedchha. 10. The learned Assistant Government Pleader appearing for the appellant during the course of hearing has brought to our notice the compensation awarded by this Court in respect of the acquisition of the land at village Sarbhan in the proceedings of First Appeal No. 3663 of 2007 wherein Notification under section 4 of the Act for acquisition of land at village Sarbhan was published on 8.2.1996 and this Court confirmed the compensation at Rs.46.67 per sq.mtr. and if rounded of it can be said Rs.40/- per sq. mtr. Another pertinent aspect is that development of village Sarbhan is much on higher side in comparison to village Vedchha. This Court in the aforesaid decision of First Appeal No. 3663 of 2007 decided on 18.6.2007 has recorded that at village Sarbhan, there are facilities of telephone, academic education, co-operative society and railway track etc. mtr. Another pertinent aspect is that development of village Sarbhan is much on higher side in comparison to village Vedchha. This Court in the aforesaid decision of First Appeal No. 3663 of 2007 decided on 18.6.2007 has recorded that at village Sarbhan, there are facilities of telephone, academic education, co-operative society and railway track etc. Another relevant aspect is that as declared by Assistant Government Pleader, aforesaid decision of the learned Single Judge of this Court dated 16.8.2007 in First Appeal No. 3663 of 2007 and allied matters for the compensation in respect of the acquisition of the land at village Sarbhan has been accepted by the State Government as conveyed to the learned Assistant Government Pleader by Mr. H.M. Patel, Deputy Executive Engineer. It further appears from the award of the Land Acquisition Officer that village Vedchha is a very small village where the population at the relevant time was 898 only and it was also recorded by the Land Acquisition Officer that there is no industry or business or any non agricultural activity in the village and no steps were taken for development in the village. Therefore while considering the market value of the land at village Sarbhan, the difference in the development at village Sarbhan and the position of village Vedchha, and more particularly, no industrial development whatsoever is required to be considered. We find that if the comparative value of the land at village Sarbhan on account of the adjoining village is to be considered as a basis, deduction of 20% would be required to be made on account of the fact that village Vedchha is a very small village comprising population of less than 1000 and there is no industrial and/or developmental activity of whatsoever nature at village Vedchha. The further aspect that when this Court has already assessed market value of land at village Sarbhan may be by learned Single Judge of this Court, the same in our view would be more reliable aspect in comparison to valuer's report wherein he has not taken into consideration the substantial difference between the development of village Sarbhan and village Vedchha. Further it is not matter where acquisition of the lands is at village Sarbhan in the present case. Further it is not matter where acquisition of the lands is at village Sarbhan in the present case. Therefore the question of allotment of the lands by the Government at village Sarbhan to any other institution or price fixed for such purpose would not matter nor same can be considered as against valuation already fixed by this Court of the agricultural lands at village Sarbhan, which is accepted by the Government too. We may also record that no comparison can be made for the purpose of assessment of the market value of the land at village Vedchha based on the valuation made by the District Valuation Committee for allotment of the land at village Sarbhan which was non agricultural land having different character. It may be that in a given case the Court may consider the said aspect provided no other reliable evidence about the market value is available before the Court. In the present case, when this Court has already fixed market value may be in the year 1996 for acquisition of the land at village Sarbhan, the same in our view can be considered as more reliable factor for assessment of the market value as against the allotment made of the land for non agricultural purpose by Government to any society for staff quarters, at village Sarbhan. 11. The aforesaid discussion would show that the market value of the land at village Sarbhan wherein notification under section 4 was published on 8.2.1996 was assessed as Rs. 40/- per sq. mtr. and the said aspect deserves to be considered for assessment of market value of the land in question. 12. Further notification under section 4 of the Act in the present case is on 30.6.1993, roughly three years prior to the acquisition of the land at village Sarbhan vide notification under section 4 of the Act dated 8.2.1996. It is by now well settled that normally appreciation is to be considered in the value of the land @ 10% p.a. If the said appreciation is considered in a reverse manner 30% of the amount would be required to be deducted from the valuation of the land at village Sarbhan. If 30% for three years is taken out as deduction, the valuation of the land at Sarbhan in the year 1993 would come to Rs. 28/- per sq. mtr. (Rs. 40/- minus Rs. 12/- and Rs.28/-). If 30% for three years is taken out as deduction, the valuation of the land at Sarbhan in the year 1993 would come to Rs. 28/- per sq. mtr. (Rs. 40/- minus Rs. 12/- and Rs.28/-). After arriving at the value of land at village Sarbhan as Rs. 28/-, as observed earlier, the appropriate deduction of 20% would be required to be made for finding out the approximate market value of the land at village Vedchha. The said 20% would come to Rs. 5.60 and if rounded of, it would come to Rs.6/- and if deducted from Rs. 28/- it would come to Rs. 22/- per sq. mtr. Hence the market value of the land at village Vedchha would be Rs. 22/- per sq. mtr. on the date when the notification under section 4 of the Act was published on 30.8.1993. 13. Further there would be proportionate difference in the market value of the land between irrigated land and non irrigated land. If for irrigated land market value is considered as that of Rs.22/- taking the base that normally there will be difference of 25% in the market value of the land between irrigated land and non irrigated land, if 25% of the amount is considered, same would be Rs. 5.50 per sq.mtr. and hence, net amount would come to Rs. 16.50 per sq. mtr. being market value of the non irrigated land and the market value of the irrigated land would come to Rs. 22/- per sq. mtr. as observed earlier. Out of the said amount Rs. 2.25 per sq. mtr. has already been awarded as compensation for irrigated land and Rs.1.50 per sq.mtr. is awarded as compensation for non irrigated land. Hence, the additional compensation for irrigated land would come to Rs.19.75 per sq. mtr. and for non irrigated land it would come to Rs. 15/- per sq. mtr. As against the same, the Reference Court assessed the compensation at Rs.6/- for irrigated land and Rs.4/- for non irrigated land. Under the circumstances, the judgment and award of the Reference Court for the quantum of the compensation deserves to be modified. 14. It further appears that the Reference Court has committed an error in not considering one of the important statutory benefits available for increase in the market value of the land to the claimants under section 23(1A) of the Act. 14. It further appears that the Reference Court has committed an error in not considering one of the important statutory benefits available for increase in the market value of the land to the claimants under section 23(1A) of the Act. Therefore, the said statutory benefit is required to be granted. All statutory benefits viz. increase in the market value under section 23(1A) of the Act, Solatium under section 23(2) of the Act and interest under section 28 of the Act would be available to the original claimants on the aforesaid principle net amount of additional compensation. 15. In view of the aforesaid observation and discussion, it is observed and directed that the original claimants shall be entitled to additional compensation at Rs. 19.75 per sq. mtr. for irrigated land and Rs. 15/- per sq. mtr. for non irrigated land. Additionally, the claimants shall also be entitled to increase in the market value under section 23(1A) of the Act as well as the solatium under section 23(2) of the Act and the interest under section 28 of the Act, on the aforesaid principal amount of additional compensation. If the amount of compensation is not deposited, the same shall be deposited with the Reference Court within a period of eight weeks from the date of receipt of the present judgment and order. 16. Under the circumstances, all appeals being First Appeal Nos. 5072 of 2007 to 5085 of 2007 preferred by the Special Land Acquisition Officer and another are dismissed. The appeals preferred by the original claimants being First Appeal Nos. 4833 of 2008 to 4846 of 2008 shall stand allowed to the aforesaid extent. Considering the facts and circumstances, there shall be no order as to costs. Record and Proceedings be returned to the Reference Court. Order accordingly.